Muhammad Saeed vs The State etc.

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Crl. Appeal No. 221/2024 Muhammad Saeed Vs. The State etc.

Crl. Appeal No. 290/2024 Imam Bukhsh Vs. The State etc.

JUDGMENT

Date of hearing: 25.06.2025 For the Appellant Malik Muhammad Sajid Feroze, Advocate.

Crl. Appeal No.221/2024:

For the Appellant Mr. Muhammad Asim Khan, Advocate, Crl. Appeal No.290/2024 assisted by Hafiz Muhammad Asghar Bhatti, (Complainant of FIR No.

Advocate.

Rao Riaz Ahmad Khan, Deputy Prosecutor For the State:

General.

Mr. Muhammad Kalim Aslam Awan, Research assistance: Research Officer, LHCRC, and Syed Zeeshan Haider, Advocate.

Tariq Saleem Sheikh, J. – Through this judgment, we propose to decide Criminal Appeal Nos. 221/2024 and 290/2024, which arise from the judgment dated 30.03.2024 passed by the Additional Sessions Judge, Khanpur.

FIR No. 858/2021

2.On 15.09.2021, Ghulam Fareed/SI (PW-7), then posted at Police Station City Khanpur, District Rahimyar Khan, received information about a murder at Ahmad Petroleum, commonly referred to Shafi Pump. He immediately proceeded to the scene. At about 7:00 p.m., Imam Bukhsh (PW-2) approached him for registration of FIR regarding the incident. He stated that his nephew, Bashir Ahmad, worked as an oilman at Shafi Pump. Earlier that day, around Asar time, he (Imam Bukhsh), accompanied by Muhammad Asghar and Ahmad Yar, was travelling by motorcycle from Pakistan Chowk to Nawankot Chowk via Shahi Road. When they reached

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in front of the said petrol pump, they saw Muhammad Saeed (alias Saeed Ahmad) and Muhammad Sadiq standing near Bashir. Within their view, Saeed shot at Bashir with a 12 bore repeater in the head. They attempted to apprehend Saeed and Sadiq, but both fled the scene on a motorcycle, throwing the 12 bore repeater nearby. Imam Bukhsh (PW-2) further stated that he and his companions rushed to attend Bashir, but he succumbed to his injuries. He alleged that the motive for the incident was an altercation that took place on 14.09.2021 between Bashir and the petrol pump owner, Muhammad Abid, who instigated Saeed and Sadiq to murder Bashir.

3.Ghulam Fareed/SI (PW-7) reduced Imam Bukhsh’s statement to writing (Exh. PB) and sent it to the police station through Muhammad Tahir 449/C. Malik Muhammad Zulfiqar/ASI (PW-6) registered FIR No.858/2021 dated 15.09.2021 (Exh. PF) on its basis.

Police investigation

4.The investigation of the case was also assigned to Ghulam Fareed/SI (PW-7) on the same day, i.e., 15.09.2021. Upon receiving the file, he recorded the statements of Ahmad Yar (PW-3) and PW Muhammad Asghar (not produced at trial) under section 161 Cr.P.C. and prepared a rough site plan of the place of occurrence on the pointing out of Imam Bukhsh and the aforementioned eyewitnesses. He prepared Bashir’s Injury Statement (Exh. PE/2) and Inquest Report (Exh. PE/3). He handed over his dead body to Munawar Hussain 744/C (PW-1) along with a written request (Exh. PE/1) for autopsy at THQ Hospital, Khanpur. Ghulam Fareed/SI then collected bloodstained earth from the site and sealed it in a parcel. He also found the alleged weapon of offence (a 12 bore repeater) (P-1), and a crime empty from the scene, both of which were sealed by a team from the Punjab Forensic Science Agency (PFSA) that arrived there on his call. He secured all these items vide Recovery Memo Exh. PC. He also took into possession USB (P-3) said to contain footage of the occurrence retrieved from a CCTV camera installed at Shafi Pump, made a sealed parcel, and secured it through Recovery Memo Exh. PN. After completing the proceedings, he returned to the police station and handed over the case property, including the USB, to the Moharrar, Muhammad Afzal 1696/HC

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(PW-4). On 19.09.2021, the Moharrar returned the case property to him for onward transmission to the PFSA, which subsequently submitted its forensic reports to the Moharrar.

5.On 21.09.2021, Ghulam Fareed/SI arrested Saeed from Khanpur on spy information. During interrogation, Saeed confessed his guilt. On 26.09.2021, Abid and Sadiq also joined the investigation while on ad-interim pre-arrest bail. At that stage, Ghulam Fareed/SI opined that all three accused were involved in the commission of the offence.

6.On 29.12.2021, the case was entrusted to Muhammad Aslam Khan/SDPO (PW‐9) for further investigation. Upon review of the record and examination of witnesses, he concluded that Saeed had murdered Bashir. He found that Sadiq had come to Shafi Pump to meet Saeed and was present at the place of occurrence at the relevant time, but there was no material linking him to the offence. As for Abid, being the owner of the petrol pump, his presence at the premises stood explained. The SDPO opined that neither Sadiq nor Abid played any role in the commission of the offence.

7.On 15.01.2022, the police filed a report under section 173 Cr.P.C., placing Sadiq and Abid in Column No.2 and Saeed in Column No.3.

8.On 28.01.2022, the Additional Sessions Judge, Khanpur, framed charge against Saeed, Sadiq, and Abid. They pleaded not guilty and claimed a trial.

9.The prosecution produced nine witnesses to prove the charge. Imam Bukhsh (PW-2) and Ahmad Yar (PW-3) furnished the ocular account of the incident. PW Ahmad Yar also deposed that, on 15.09.2021, Ghulam Fareed/SI (PW-7) took into possession USB P-3 containing CCTV footage vide Recovery Memo (Exh. PN). Dr. Muhammad Umar Baqa (PW-5) provided the medical evidence. Malik Muhammad Zulfiqar/ASI (PW-6) registered FIR No. 858/2021 (Exh. PF). Syed Tahir Hussain Naqvi, Draftsman (PW-8), prepared the scaled site plan (Exh. PH). Ghulam Fareed/SI (PW-7) and Muhammad Aslam Khan/SDPO (PW-9) gave the details of their respective investigations. The remaining witnesses were formal. The prosecution tendered the following documents in evidence:

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receipt of the dead body of deceased Bashir Ahmad (Exh. PA), complaint of the case (Exh. PB), recovery memo of sealed parcels (Exh. PC), recovery memo of postmortem report, receipt of dead body, and last worn clothes of the deceased (Exh. PD), PMR No.16/2021 (Exh.PE), injury statement (Exh. PE/1), application for autopsy (Exh.PE/2), Inquest Report (Exh. PE/3), copy of the FIR (Exh. PF), rough site plan of the place of occurrence (Exh. PG), scaled site plan of the place of occurrence (Exh. PH), Audio Video Analysis Report (Exh. PJ), Firearms & Toolmarks Examination Report (Exh. PK), and Forensic DNA, Serology Analysis Report (Exh. PM). On 15.12.2022, the public prosecutor gave up PWs Muhammad Asghar and Ibrar Hussain being unnecessary. It is significant that Muhammad Asghar had been cited as one of the eyewitnesses in the

FIR.

10.After the completion of the prosecution’s evidence, the trial court recorded the statements of Saeed, Sadiq, and Abid under section 342 Cr.P.C. and confronted them with the incriminating material produced at the trial. They refuted it and professed innocence. None of them opted to record a statement on oath under section 340(2) Cr.P.C., nor did they examine any witnesses in their defence.

11.It is important to highlight that the trial in this case continued for about 26 months. The prosecution’s evidence was recorded piecemeal. The court recorded the examination-in-chief of whichever witness appeared on a particular hearing date and deferred his cross-examination to a later stage. The Investigating Officer, Ghulam Fareed/SI (PW-7), obtained CCTV footage of the incident from the surveillance cameras installed at Shafi Pump on a USB drive, which was submitted with the report under section 173 Cr.P.C. in a sealed parcel. However, it appears that the trial court did not provide copies of the footage to the accused as required under section 265-C Cr.P.C. On 16.06.2022, the defence moved an application for its provision, which the court allowed the same day. Accordingly, on 30.06.2022, the court de-sealed the parcel and provided soft copies of the footage to all the accused.

12.On 02.03.2024, during the course of final arguments, the Public Prosecutor noticed that the USB containing the CCTV footage and

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the related Recovery Memo had not been formally exhibited, although both were available in the police file. Therefore, he filed an application to rectify the omission. The trial court issued notice to the defence and, vide order dated 09.03.2024, allowed the application and summoned Ghulam Fareed/SI (PW-7) for re-examination.

13.On 27.03.2024, Ghulam Fareed/SI (PW-7) was re-examined. He produced the USB in question in evidence which was tagged as P-3, and the Recovery Memo pertaining to it was exhibited as Exh. PN. At that stage, the prosecution filed an application under section 540 Cr.P.C. for summoning and re-examining Ahmad Yar (PW-3), who was one of the attesting witnesses of Exh. PN. The court allowed the application the same day after issuing notice to the defence. The cross-examination of Ghulam Fareed/SI was deferred at the request of the defence, who stated that they would cross-examine him after the re-examination of Ahmad Yar.

14.On 28.03.2024, Ahmad Yar (PW-3) was re-examined, and the defence cross-examined him and Ghulam Fareed/SI (PW-7) regarding the additional evidence they had given. Thereafter, the trial court recorded the statements of Saeed, Sadiq, and Abid under section 342 Cr.P.C. afresh in light of the newly introduced material.

15.Finally, vide judgment dated 30.3.2024, the Additional Sessions Judge acquitted Sadiq and Abid by extending them the benefit of doubt. As regards Saeed, he altered the charge from section 302 PPC and convicted him under section 322 PPC, holding that the offence amounted to Qatl-bis-sabab (unintentional murder). He was sentenced to pay Diyat in the sum of Rs. 4.26 million to Bashir’s legal heirs. The court further directed that he shall remain confined in jail until the realization of the said amount.

The trial court’s findings

16.The Additional Sessions Judge’s verdict rested on the CCTV footage contained in USB P‐3, the medical evidence of Dr. Muhammad Umar Baqa (PW‐5), the forensic reports (Exh. PJ, Exh. PK, and Exh. PM), and the recovery of the alleged crime weapon (P‐1). He disbelieved Imam Bukhsh (PW‐2) and Ahmad Yar (PW‐3), holding that they had not

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witnessed the occurrence. He further found that the prosecution had failed to establish the motive alleged in the FIR (Exh. PF).

17.The CCTV footage was played in open court during the examination of the accused under section 342 Cr.P.C. Saeed and Sadiq denied both its contents and their presence in the footage. However, Abid, the owner of Shafi Pump, admitted its accuracy and stated that he was present in his office at the relevant time. According to the impugned judgment, the footage showed Bashir coming out of the store-room with a jug, as marked in the site plan (Exh. PG), pouring water into a glass, and handing it to Saeed. Then he returned to the store-room and re-emerged to collect the empty glass, standing in front of Saeed and facing away from him. At that moment, Saeed removed the repeater from his shoulder, raised the barrel, and pulled the trigger, which resulted in a fatal shot striking the back of Bashir’s head.

18.The Additional Sessions Judge observed that, at first glance, the footage suggested that Saeed had aimed at the deceased. However, closer scrutiny revealed that he had bolted the weapon before Sadiq’s arrival and slung it over his shoulder. Had he been familiar with firearms, he would not have carried a loaded gun in that position because even a slight pull of the trigger could have endangered his own life. The footage further showed that, after the discharge, Saeed threw the weapon and attempted to flee on a motorcycle taken from Sadiq. However, when another oilman restrained him, he offered no resistance. He appeared confused and frightened and his body language was not consistent with that of a person who had committed a deliberate murder. He could have fled but remained at the scene and even entered the office at Abid’s direction. The Judge further noted that Saeed was not a trained guard but an oilman temporarily deputed to carry the gun. He might have been showing off or jesting, having forgotten that he had earlier bolted the weapon and thereby loaded a cartridge in the barrel. Based on these observations, the Judge concluded that the incident was neither deliberate nor intentional but occurred due to a mistake of fact and act. He held that the offence did not amount to Qatl-e-amd under section 302 PPC but constituted Qatl-bis-sabab within the meaning of section 322 PPC.

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19.The defence questioned the admissibility of the CCTV footage on the ground that its chain of custody had not been proved. More particularly, the individual who copied the CCTV footage from the DVR to USB P-3 was not produced. The Additional Sessions Judge overruled this objection, holding that the omission was not fatal in the peculiar circumstances of the case. It had come on record that Ghulam Fareed/SI (PW‐7), the Investigating Officer, had the footage copied from the DVR to a USB (P‐3), sealed it in a parcel, and took it into possession through Recovery Memo Exh. PN. This sealed parcel was then entrusted to Muhammad Afzal 1696/HC (PW‐4), the Moharrar, for safe custody in the Malkhana, and was subsequently forwarded to the PFSA in accordance with law. The Judge observed that during cross-examination, no question was put to Ghulam Fareed/SI regarding the admissibility or safe custody of the footage contained in USB P-3. He further noted that the footage was within the knowledge of the accused because on 30.06.2022 they had made an application before the trial court for its copy. The request was allowed, and a copy was provided to them. The Judge emphasized that although the footage remained with the accused for over eighteen months, no objection was raised regarding its contents or the mode of its collection.

Appeals before this Court

20.Muhammad Saeed has challenged his conviction and sentence through Crl. Appeal No. 221/2024. Imam Bukhsh has filed Crl. Appeal No. 290/2024 against the absolute acquittal of Sadiq and Abid, and that of Saeed from the charge under section 302 PPC.

The submissions

21.In support of Crl. Appeal No. 221/2024, Malik Sajid Feroze, Advocate, contends that the Additional Sessions Judge disbelieved Imam Bukhsh (PW‐2) and Ahmad Yar (PW‐3) for cogent reasons. However, having discarded the ocular account, he erred in convicting Saeed on the basis of CCTV footage alone, which is merely a corroboratory or confirmatory piece of evidence. Counsel argues that the original DVR or hard drive on which the footage was recorded was neither secured during the investigation nor produced at trial. The prosecution did not establish who copied the footage to USB P‐3 and when. According to Mr. Malik,

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this gap in the chain of custody undermines the authenticity of the footage and renders it inadmissible under the standards laid down by the Supreme Court in Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others (PLD 2019 SC 675). He submits that the PFSA report (Exh. PJ) is insufficient to establish authenticity in the absence of foundational proof. He therefore argues that Saeed’s conviction is unsustainable and prays that Crl. Appeal No. 221/2024 be accepted and Saeed acquitted of the charge.

22.In support of Crl. Appeal No. 290/2024, Mr. Muhammad Asim Khan, Advocate, submits that the prosecution proved the charge under section 302 PPC against all three accused beyond a reasonable doubt. He contends that the trial court committed a grave error in convicting Saeed only under section 322 PPC and in acquitting Sadiq and Abid altogether. He points out that Imam Bukhsh (PW‐2) and Ahmad Yar (PW‐3) remained consistent on material particulars despite extensive cross- examination and that their account is corroborated by medical and forensic evidence. The postmortem established that Bashir was shot in the head from a close range, the crime weapon was recovered from the scene, and the forensic report (Exh. PK) confirmed that it matched the recovered shot shell. Mr. Khan further states that the entire incident was recorded on the CCTV cameras installed at Shafi Pump. The footage was taken into possession by the Investigating Officer, sent to the PFSA, and found to be free from any editing or tampering. It was played in court in the presence of the accused. Abid, the petrol pump owner, admitted that the footage depicted his premises and did not dispute the occurrence shown therein. Mr. Khan argues that the trial court erred in concluding that Saeed lacked intent, even though the footage clearly shows him pointing a 12 bore repeater at the deceased’s head and firing at close range, which instantaneously caused his death. He contends that Saeed was not a licensed guard and carried the weapon without lawful justification, and none of the accused offered any plausible explanation for their conduct. He submits that the trial court misread the evidence, ignored critical circumstances, and extended the benefit of doubt on speculative grounds. He prays that the impugned judgment be reversed and all three accused be convicted and sentenced under section 302 PPC.

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23.The Deputy Prosecutor General (DPG) has opposed both appeals and supported the impugned judgment. He contends that the trial court has appraised the evidence in accordance with the settled principles of criminal justice. He maintains that the CCTV footage is admissible under Article 164 of the Qanun-e-Shahadat, 1984 (the “QSO”) as real evidence, and can form the basis of a conviction even in the absence of eyewitness testimony. The trial court followed the guidelines laid down in Ishtiaq Ahmed Mirza, played the footage in open court in the presence of the accused and their counsel, and relied on it only after scrutiny. He argues that the footage is corroborated by the forensic report Exh. PJ, medical evidence, and the recovery of the crime weapon, which the forensic report confirmed matched the shot shell recovered from the place of occurrence. He prays for the dismissal of both appeals.

Opinion

24.According to the prosecution, on 15.09.2021 at Asar time, Muhammad Saeed murdered Bashir Ahmad by firing at him at Shafi Pump, situated within the remit of Police Station City Khanpur, District Rahimyar Khan. The prosecution examined Imam Bukhsh (PW‐2) and Ahmad Yar (PW‐3) as eyewitnesses. Both deposed in line with the application (Exh. PB) and the FIR No. 858/2021 (Exh. PF). PWs Imam Bukhsh and Ahmad Yar were the deceased’s paternal uncle and cousin, respectively. Given their close relationship with the deceased, their testimony must be subjected to careful judicial scrutiny. The third eyewitness mentioned in the FIR, Muhammad Asghar, was not produced at trial and was stated to have been won over.

25.At the very outset, we have noticed that during cross- examination, both PWs admitted that their residences were approximately nine kilometres from the place of occurrence. However, they failed to furnish any plausible reason for being present in the vicinity of Shafi Pump at the relevant time. Accordingly, both Imam Bukhsh and Ahmad Yar were chance witnesses whose presence at the scene required a convincing explanation, which had not been furnished.

26.The prosecution alleges that the occurrence took place around Asar time, yet Imam Bukhsh’s statement (Exh. PB) was recorded at

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7:00 p.m., and FIR No. 858/2021 was registered at 7:25 p.m. This delay of several hours remains unexplained. During cross-examination, Imam Bukhsh admitted that he owned a mobile phone, but claimed he did not have it with him at the relevant time. He further stated that both of his companions had mobile phones, but none of them contacted the police helpline ‘15’ or Rescue 1122. This omission is inconsistent with natural human conduct and casts serious doubt about their presence at the scene.

27.Imam Bukhsh (PW-2) lodged the complaint Exh. PB after viewing the CCTV footage of the petrol station’s camera(s). It was not based on an eyewitness account. The following excerpts from his cross- examination are instructive:

“I have not written Exh. PB/complaint with own hand rather I only affixed my signature on it. It has been written by some police officer and I don’t know who has written the same. I am M.A. in Education. I can read my complaint/Exh.PB. The words رٹپول پمپ یک ی ی ی وی وفجیٹ وپسیل یک وموجدیگ ںیم دیھکیas written and crossed in Exh. PB was not crossed by me, and I don’t know who did the same.”

“Police took into possession the record of CCTV camera in my presence. I watched the said CCTV recording in the presence of the police.”

28.The following circumstances also suggest that the incident was reconstructed post facto. According to PWs Imam Bukhsh and Ahmad Yar, Ghulam Fareed/SI (PW‐7) reached the crime scene at 7:00 p.m. The endorsement of Ghulam Fareed/SI on Exh. PB reflects that he recorded Imam Bukhsh’s statement/complaint at the same hour. If Ghulam Fareed/SI had not yet arrived, the statement could not have been recorded at that hour. During cross-examination, Ghulam Fareed/SI admitted that he had not noted the time of his arrival at the scene anywhere in the police file. However, he voluntarily added that he had arrived at Asar-wela, which contradicts the consistent assertion of PW‐2 and PW‐3 that he reached at 7:00 p.m. Secondly, according to the footnote of Exh. PB, Ghulam Fareed/SI dispatched Bashir’s dead body through Munawar Hussain 744/C (PW‐1) to THQ Hospital, Khanpur, for postmortem. Dr. Muhammad Umar Baqa (PW‐5) testified, and the postmortem report (Exh. PE) confirms, that the body was received at the hospital mortuary at 10:00 p.m. on 15.09.2021. The prosecution failed to explain this three-hour delay in transporting the body over a distance of only 01 to 1.5 kilometres. These

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facts support the inference that the body was intentionally kept at the scene in wait for Imam Bukhsh and other witnesses, and was dispatched to the mortuary after their arrival.

29.Additionally, we have noticed an unexplained inordinate delay in conducting Bashir’s postmortem. According to the postmortem report Exh. PE, his corpse was brought to the mortuary at 10:00 p.m. on 15.09.2021, and the police papers were received at 02:45 a.m. on 16.09.2021. The autopsy was conducted at 03:00 a.m. The “delay in postmortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eyewitnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a postmortem examination of dead body conducted.”1

30.The testimony of the PWs also lacked internal consistency. Both stated in examination-in-chief that they rushed to the deceased immediately after the shot was fired. Yet, during cross-examination, Imam Bukhsh stated he was standing 70/80 feet away and admitted that neither he nor Ahmad Yar appeared in the CCTV footage. He offered a convoluted explanation that they were on the other side of the road and had been restrained by 10/12 unknown persons who prevented them from crossing. He further claimed that these individuals threatened them with dire consequences if they disclosed the incident to police or court. These explanations are inherently implausible and suggestive of an afterthought. Importantly, no report of such grappling or threats was made to police, nor was any protection sought by the PWs during the trial.

31.Imam Bukhsh also stated that he and his companions chased the accused for 20 to 30 minutes after the shooting and returned to the scene after 30 to 40 minutes, and then attended the deceased. This claim is highly unnatural. It is improbable that close relatives of the victim would abandon him in a critical state to pursue the fleeing assailants on a motorcycle.

Irshad Ahmed v. The State (2011 SCMR 1190). Also see: Muhammad Ashraf v. The State (2012 SCMR 419), Muhammad Ilyas v. Muhammad Abid alias Billa and others (2017 SCMR 54), Zafar v. The State and others (2018 SCMR 326), Sufyan Nawaz and another v The State and others

(2020 SCMR 192).

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32.PWs Imam Bukhsh and Ahmad Yar made material improvements in their statements before the trial court over those recorded under section 161 Cr.P.C., and they were duly confronted with those discrepancies. It is a well-established principle that a witness who makes dishonest improvements in their testimony is not worthy of reliance.2

33.In view of the foregoing, we find that the testimonies of Imam Bukhsh (PW‐2) and Ahmad Yar (PW‐3) do not inspire confidence. The trial court rightly discarded their evidence, and we find no reason to depart from that conclusion.

CCTV footage

34.Petrol stations in Pakistan generally have surveillance cameras that function 24/7. Shafi Pump had also installed them. On 15.09.2021, the Investigating Officer, Ghulam Fareed/SI (PW‐7), obtained CCTV footage of the occurrence from the station’s surveillance system. The relevant segment was transferred to a USB drive, which was taken into custody through the Recovery Memo Exh. PN and later tendered in evidence as P‐3. Since the ocular account has been disbelieved, the said CCTV footage constitutes the principal piece of evidence in this case.3 As noted earlier, Muhammad Saeed (Appellant in Crl. Appeal No. 221/2024) has challenged its admissibility, while the Complainant, Imam Bukhsh (Appellant in Crl. Appeal No. 290/2024), contends that the trial court failed to appreciate its probative value properly. Before examining these competing contentions, it is necessary to address the following legal questions:

i)Is video evidence or CCTV footage admissible under the law of Pakistan, and if so, what foundational requirements must be satisfied to establish its authenticity and admissibility?

ii)Once admitted, what is the evidentiary value of such footage? Can it form the sole basis for conviction where the ocular account has been rejected?

Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Khalid Javed and another v. The State (2003 SCMR 1419), Ibrar Hussain and others v. The State and another (2007 SCMR 605), Muhammad Rafique and others v. The State and others (2010 SCMR 385), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR344).

USB P‐3 refers to the flash drive into which the CCTV footage from the DVR at Shafi Pump was allegedly copied by the police. In this judgment, the terms “USB P‐3” and “CCTV footage” are occasionally used interchangeably for ease of reference. However, the legal distinction between the storage medium (USB) and the video content it contains has been maintained and expressly observed wherever relevant to the issues of admissibility, authentication, or evidentiary value.

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35.Human witnesses may misperceive, forget, or miscommunicate what they observed.4 On the other hand, photographic evidence can capture a scene in detail without interpreting it, and permanently preserve it. Very often, it provides a much better and more accurate record of the words used and the manner in which they were spoken than a witness who was a party to the conversation or overheard it. It enables the court to travel back in time and “see” what and how it happened. Murphy on Evidence states:

“Although in modern law visual and audio recordings may be regarded as documents, at least for some purposes, they have a further, important potential to supply matters of evidential value, because of the possibility of direct perception. A tape or film may yield detail and nuances over and above the mere text of the matters recorded therein. Some detail of the circumstances of the recording, some visible characteristic, some inflexion of the voice may put a different complexion on the recorded matter, as compared with a mere transcript of the words spoken or the things done. The sound or accent of a voice, the physical appearance of a thing or person, may resolve some ambiguity or clothe with meaning some unexplained passage in the text. The recordings are, therefore, to that extent real evidence and often have an effect similar to a view or the production of a material object. To the extent that recordings are admissible as real evidence, it is no objection to admissibility that the evidence is meant to, and does in fact, convey information because it is offered for direct observation by the court, and not as a species of hearsay.”5

36.In R. v. Rowbotham (1988), 41 CCC (3d) 1, echoing Murphy on Evidence, the Court of Appeal for Ontario observed that audio or video recordings convey not only the words spoken by the accused or a co- conspirator but also the emphasis placed on particular phrases and the tone of voice used. Such recordings enable the trier of fact to distinguish, for instance, between a facetious exclamation and a threat of violence. Therefore, the tapes can provide strong and convincing evidence of innocence and guilt. Similarly, in R. v. Nikolovski, [1996] 3 RCS 1197, the Supreme Court of Canada noted that a video camera is not subject to stress. It continues to record accurately and dispassionately through tumultuous events. Although silent, it remains a constant, unbiased witness with instant Professor Munsterberg, in his book On the Witness Stand (p. 51), cited by Judge Jerome Frank in Law and the Modern Mind (1949 ed., p. 106), recounts a series of experiments in which sudden, preplanned incidents were staged before unsuspecting observers who were then asked shortly thereafter to describe what they had seen and heard. The results were startling: “Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragicomedy were completely eliminated from the memory of a number of witnesses.” The Professor concluded, “We never know whether we remember, perceive, or imagine.”

Peter Murphy, Murphy on Evidence (13th edn, OUP 2017) p.696.

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and total recall of all that it observed. The trier of fact may study the recording as often as required and pause it at critical junctures. If the footage is of good quality and gives a clear picture of the events and the perpetrator, it may provide the best evidence of the incident, including the identity of the perpetrator. In some cases, it may be the only available evidence. For instance, if every eyewitness to a robbery is killed, the camera may still impartially record the robbery and the acts of the robbers. A court should not disregard such footage merely because no human intermediary can authenticate its contents. The Supreme Court further held that the degree of clarity and quality of the tape, and to a lesser extent, the duration for which the accused appears on the videotape, are relevant to determine the weight that should be given to it. Even a few clear frames may suffice to establish identity.

37.Video footage may be relevant to the issues of (a) whether the offence was committed, and (b) who committed it.6 However, before it can be relied upon, the footage must first be proved to be authentic. Courts have increasingly acknowledged that, if properly authenticated, video evidence may carry greater probative value than oral testimony. Once the recording is proved to have been made at the relevant time and place, it becomes equivalent to a witness recounting events seen or heard. In Justinas Gubinas and Nerijus Radavicius v. HM Advocate, [2017] HCJAC 59, the Scottish High Court of Justiciary ruled that the fact-finders are entitled to draw inferences from video recordings in the same way as they would from live testimony. However, this does not convert the fact finder into a witness. The High Court addressed at length the question of how persons seen in video clips are to be identified, a matter which has generated considerable debate across jurisdictions. After analyzing various judgments, the Court held that, in an appropriate case, the fact-finder, whether jury or sheriff, is entitled to form its own view on whether an image is that of an accused, or that it depicts a person resembling the accused. In doing so, the trier of fact may compare the video with a photograph of the accused taken at or about the time of the incident and/or R. v. Dodson, [1984] 1 W.L.R. 971 (C..C.A.)

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with his appearance in court.7 The High Court emphasized that good quality video may not only supplement or confirm eyewitness testimony but may replace it altogether in some circumstances. The High Court preferred the more flexible English approach of the Court of Appeal of England and Wales in Attorney General’s Reference (No. 2 of 2002),8 over the Irish approach in People (DPP) v. Maguire,9 which restricted jury comparison of images with the accused in court to exceptional circumstances.

38.Photographic evidence is admitted under two principal theories.10 The first is the “pictorial testimony” theory under which a sponsoring witness, who has personal knowledge of the scene depicted (whether or not he is the photographer), testifies that the photograph fairly and accurately portrays that scene.11 The second is the “silent witness” theory under which the photographic evidence is reckoned as a “silent witness” which “speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness.”12 It is a “rule of evidence that allows for the admission of photographic video, or other recorded evidence as substantive proof of what it depicts, without the need for an eyewitness to testify that they personally observed the events depicted in the recording.”13 This model is often associated with video recordings, for example, captured by surveillance cameras. Under both theories, authentication and relevance are the prerequisites for the admissibility of photographic evidence. Wigmore on Evidence states:

“It is sufficient to note at this point that, by universal judicial concession, a map, model, or diagram, takes an evidential place simply as a non- verbal mode of expressing a witness’ testimony ... Upon like principles a photograph may be admissible as the testimony of a qualified witness who instead of verbalizing his knowledge of what the picture portrays, adopts it as a substitute for description with words ... This theory which has been aptly dubbed the ‘pictorial testimony theory of photographs’, was advanced in prior editions of this work as the only theoretical basis which could justify the receipt of photographs in evidence. With later advancements in the art of photography, however, and with increasing Irvine v. Donnelly, 2012 SCCR 486

[2003] 1 Cr App R 21 (p 321)

[1995] 2 IR 286

Fisher v. State, 643 S.W.2d 571 (1982).

United States v. Reginald T. Rembert, 863 F.2d 1023 (D.C. Cir. 1988).

Fisher v. State, 643 S.W.2d 571 (1982).

Zahir Zakir Jaffar v. The State and another (2025 SCP 220).

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awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the ‘pictorial testimony’ rationale), there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which ‘speaks for itself’.”14

39.The “silent witness” theory is now widely accepted.15 However, jurisdictions differ on the evidentiary requirements necessary to satisfy the “silent witness” standard. In The State of New Hampshire v. Stephen Stangle, 97 A.3d 634, 166 N.H. 407, No. 2012 – 817 (N.H. Jun 20, 2014), the Supreme Court observed that the approaches fall into two general categories. Some jurisdictions apply a flexible approach, which allows courts to determine admissibility in light of the unique facts of each case.16 Others employ a structured multi-factor analysis, considering such factors as (i) how the recording system operates, (ii) the system’s working condition and pattern of maintenance, (iii) who operates the system, has access to it, and maintains its archives, (iv) the quality of the recording, and (v) the means by which the recording was copied to the format viewed at trial.17 Even courts that apply a multi-factor test acknowledge that no checklist of factors can be exhaustive or mandatory in every case. Endorsing the pragmatic approach, the New Hampshire Supreme Court held:

“We agree with those courts that have declined to adopt a rigid, formulaic approach to the silent witness theory of authentication. We conclude that it is not wise to establish specific foundational requirements for the admissibility of photographic [or video] evidence under the ‘silent witness’ theory, since the context in which the evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the Wigmore on Evidence, Vol. 3 (Chadbourn rev. 1970), § 790).

See, for example: United States: United States v. Taylor (530 F.2d 639 (5th Cir 1976), State v. Holderness, 293 N.W.2d 226 (Iowa 1980), Litton v. Commonwealth of Kentucky, 597 S.W.2d 616 (Ky.1980), Fisher v. State, 643 S.W.2d 571 (1982), United States v. Reginald T. Rembert, 863 F.2d 1023 (D.C. Cir. 1988), (United States v. Harris, 55 M.J.433 (C.A.A.F 2001). United Kingdom: The State of New Hampshire v. Stephen Stangle, 97 A.3d 634, 166 N.H. 407, No. 2012–817 (N.H. Jun 20, 2014), R v. Atkin and others, [2009] EWCA Crim 1876, R v. Gubinas and Radavicius, [2017] HCJAC 59. Canada: R v. Nikolosvki, [1996] 3 RCS 1197.

United States v. Rembert, 863 F.2d 1023 (D.C. Cir. 1988), State v. Haight-Gyuro 186 P.3d 33 (Ariz. Ct. App. 2008), and State v. Anglemyer, 691 N.W.2d 153 (Neb. 2005).

United States v. Richard Ashton Oslund, 453 F.3d 1048 (8th Cir. 2006); Ex parte Fuller, 620 So. 2d 675 (Ala. 1993); State v. Cook 721 S.E.2d 741 [N.C. Ct. App. 2012)].

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trier of fact can reasonably infer that the subject matter is what its proponent claims. This allows the trial court to consider the unique facts and circumstances in each case and the purpose for which the evidence is being offered in deciding whether the evidence has been properly authenticated.”

40.In Pakistan, Article 164 of the QSO allows the court to admit digital evidence. Article 164 previously stated:

164.Production of evidence that has become available because of modern devices etc. – In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques: [Provided that conviction on the basis of the modern devices or techniques may be lawful.]19

41.In 2023, Article 164 was substituted through the Criminal Laws (Amendment) Act, 2023, and it now reads as follows:

164.Production of evidence that has become available because of modern devices or information system, etc. – Depending upon the nature of case and circumstance, the Court may, if deem appropriate, allow to be produced any evidence or witnesses recorded by the Court through modern devices or techniques including video call, Viber, Skype, IMO, WhatsApp, Facebook Messenger, line caller, and video conference, etc.

42.The original Article 164 of the QSO allowed courts to admit evidence produced through “modern devices or techniques” but did not define what those included. The Criminal Laws (Amendment) Act, 2023, replaced this provision to align it with emerging technologies and communication methods. The revised Article 164 now lists specific platforms such as Skype, WhatsApp, and Facebook Messenger, making it clearer how evidence may be recorded or presented. However, the amended version omits the proviso inserted on 17.02.2017, which had explicitly allowed convictions based solely on such modern evidence. This omission suggests that, while courts may still admit digital evidence, they must now assess it with greater caution and subject it to stricter scrutiny. Such evidence must meet the general standards of admissibility under the QSO, including proof of relevance, authenticity, and reliability. The change may also reflect a broader concern for fair trial safeguards under Article 10A of the Constitution, particularly given the susceptibility of digital material to editing or manipulation.

Internal citations omitted.

Added by the Criminal Laws (Amendment) Act IV of 2017 (dated 17.02.2017).

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43.In Zahir Zakir Jaffar v. The State and another (2025 SCP 220), the Supreme Court of Pakistan adopted the “silent witness” theory. It ruled that CCTV footage is admissible under Article 164 of the QSO as primary evidence, provided it is authenticated. It stated:

“The digital evidence has now assumed a crucial role in the courts of law while administering justice. In the recent past such evidence was treated as hearsay and secondary evidence in our country. However, as stated above, keeping in view its importance, particularly in tracing and identifying the culprits, required changes were made in the relevant laws in order to give the status of primary evidence to the digital evidence, thus, being primary evidence, it is admissible. The CCTV footage, if [it passes] the two-fold test, as per dictum laid down by this Court in the case of Ahmed Omar Sheikh (supra),20 then it does not require any corroboration being primary evidence.”

44.The case The State v. Ahmed Omar Sheikh and others (2021 SCMR 873), which the Supreme Court referred to in Zahir Zakir Jaffar, held that digital evidence, such as CCTV footage, must meet a two- fold threshold before it can be considered authentic. First, there must be a clear explanation of how the footage was obtained or its source. Second, a forensic report must confirm that the footage has not been edited or tampered with.

45.Earlier, in Asfandyar and another v. Kamran and another (2016 SCMR 2084), the Supreme Court held that mere production of CCTV footage is insufficient unless it is proved to be genuine. To establish its genuineness, it is essential to examine the person who prepared the footage from the original recording system. In Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others (PLD 2019 SC 675), the Supreme Court emphasized that digital material must be subjected to rigorous authentication protocols and set out a comprehensive list of twenty-one guiding principles to ensure the integrity, reliability, and legal admissibility of such evidence. These include, among others, the requirement to prove the origin of the footage, the process by which it was extracted, the chain of custody, the absence of tampering, and the examination of relevant witnesses. The rules also clarify the court’s responsibility to ensure compliance and the limitations on relying solely on forensic reports without establishing foundational facts. These principles The State v Ahmed Omar Sheikh and others (2021 SCMR 873).

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form the legal standard against which the prosecution’s evidence in the present case must be tested.21

46.Imam Bukhsh’s counsel, Mr. Muhammad Asim Khan, Advocate, relied on Requirement (iii) of Ishtiaq Ahmed Mirza to argue that courts have broad discretion under Article 164 of the QSO to admit digital evidence, including CCTV footage. He contended that this provision alone was sufficient to establish the admissibility of the footage in the present case. This argument is misconceived. Requirement (iii) merely allows the In Ishtiaq Ahmed Mirza, the Supreme Court enumerated the following requirements for the admissibility and proof of video and audio recordings:

(i)No audio tape or video could be relied upon by a court until the same was proved to be genuine and not tampered with or doctored.

(ii)A forensic report prepared by an analyst of the Provincial Forensic Science Agency in respect of an audio tape or video was per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.

(iii)Under Article 164 of the Qanun-e-Shahadat Order, 1984 it laid in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced.

(iv)Even where a court allowed an audio tape or video to be produced in evidence, such audio tape or video had to be proved in accordance with the law of evidence.

(v)Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, had to be produced so as to rule out any possibility of tampering with the record.

(vi)An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.

(vii)The person recording the conversation or event had to be produced.

(viii)The person recording the conversation or event must produce the audio tape or video himself.

(ix)The audio tape or video must be played in the court.

(x)An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.

(xi)The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognized such voice or person.

(xii)Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.

(xiii)The voices recorded or the persons shown must be properly identified.

(xiv)The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.

(xv)Safe custody of the audio tape or video after its preparation till production before the court must be proved.

(xvi)The transcript of the audio tape or video must have been prepared under independent supervision and control.

(xvii)The person recording an audio tape or video may be a person whose part of routine duties was recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.

(xviii)The source of an audio tape or video becoming available had to be disclosed.

(xix)The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.

(xx)An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.

(xxi)A formal application had to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence.

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production of digital material and affirms that courts may, in their discretion, permit such evidence to be placed on record. However, production is not proof. The proponent must still establish the authenticity, source, and integrity of that material by satisfying all applicable evidentiary standards. Each requirement laid down in Ishtiaq Ahmed Mirza stands independently. Requirement (vii), in particular, mandates a complete and verified chain of custody, clear identification of the individuals who handled the material, and proof of how the footage was extracted, preserved, and transmitted. These safeguards are cumulative, not optional, and cannot be neutralized by selectively invoking a single clause. They are grounded in the QSO and reinforce the constitutional guarantee of a fair trial under Article 10A.

47.The subsequent decisions in Ahmed Omar Sheikh and Zahir Zakir Jaffar reaffirm that the prosecution must establish the origin, authenticity, and chain of custody of video evidence through affirmative and admissible proof.22

48.In the present case, the prosecution produced a USB P-3 (containing the CCTV footage) and the forensic report Exh. PJ but it did not lead any evidence to show how, when, or from where the footage was obtained. No witness testified to having recorded the footage or copied it from the original source to the USB. The relevant excerpt from the cross- examination of Ghulam Fareed/SI (PW-7) is reproduced below:

“It is correct that I did not highlight the place of DVR in the site plan Exh. PG. I did not mention anywhere in the record the numbers of CCTV cameras installed at the petrol pump. Even today I am not in a position to mention the numbers of those CCTV cameras. It is correct that I did not take into possession any CCTV camera from the place of occurrence. It is correct that I did not mention the name of person who handed over the USB to me. Volunteered that I had visited the concerned room where backup of CCTV footage was stored and after bringing USB from official, computer operator of the petrol pump had converted the relevant footage of the occurrence in USB and the same was handed over to me. It is correct that volunteer portion of my statement is also not part of my record. It is also incorrect to suggest that my volunteer portion is based on malafide. It is correct that I did not record statement u/s 161 Cr.P.C of the said computer operator who had converted the CCTV footage of the occurrence. It is correct that I did not record the statement u/s 161 Cr.P.C of the official who had purchased the said USB.”

Also see: Member (Administration), Federal Board of Revenue and others v. Mian Khan

[2022 PLC (C.S.) 474].

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49.The Investigating Officer’s statement that the “computer operator of the petrol pump” copied the footage from the DVR to USB P‐3 was a volunteered remark. It is not supported by any record, and the person allegedly involved was neither identified nor examined. Such a statement, made without corroboration, carries no evidentiary value and cannot prove the source or authenticity of the footage.

50.The trial court’s reasoning (see paragraph 19 above) that the omission to examine the individual who copied the CCTV footage from the DVR to USB P‐3 is not fatal to the prosecution’s case is legally flawed and cannot be sustained. It disregards the binding principles laid down in Ishtiaq Ahmed Mirza, which treat the requirement to prove the source and integrity of electronic evidence not as a procedural formality but as a foundational prerequisite for admissibility. It is now technologically possible to alter or manipulate video footage during the process of copying from the original recording device, such as a DVR, to a secondary medium like a USB flash drive. Such alterations may include selective editing, splicing, or inserting fabricated segments, which may not be detectable without the original source. In the present case, the DVR was never produced or sent to the PFSA. The forensic report (Exh. PJ) merely states that “no editing feature was found in the visual contents of CCTV videos contained in USB.” That statement confirms only the condition of the footage within the USB. It does not prove that the footage is identical to what was originally recorded or that it remained unaltered during copying. No witness was produced to prove who copied the footage, under what conditions, or with what safeguards. The trial court erred in treating the accused’s failure to object, or their request for a copy of the footage, as a substitute for authentication. These circumstances have no bearing on the threshold issue of admissibility, which must be determined independently of the parties’ conduct. It was a serious error to allow the footage to be relied upon without establishing its admissibility through proper evidentiary steps. It violated the legal standards governing electronic evidence and undermined the accused’s right to a fair trial.

51.Law distinguishes between the cases (a) where evidence is inadmissible per se, and (b) where the document or material is otherwise

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admissible, but the objection pertains only to the mode of proof. In Gopal Das v. Shri Thakurji (AIR 1943 PC 83), the Privy Council held:

“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.”23

52.The Supreme Court of India (SCI) reaffirmed the above distinction in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple [2003 (4) R.C.R. (Civil) 705].24 It held that objections as to the admissibility of documents in evidence fall into two categories: (i) those that challenge the admissibility of the document itself, and (ii) those that relate solely to the mode of proof, alleging it to be irregular or insufficient. In the first case, the mere fact that a document has been marked as an exhibit does not preclude an objection to its admissibility, which may still be raised at a later stage, even in appeal or revision. In the second case, however, the objection must be taken before the document is admitted in evidence. Once it has been exhibited without objection, any challenge to its mode of proof cannot be entertained subsequently. The Court explained that this latter principle rests on considerations of fairness. A timely objection enables the party tendering the document to cure the defect by adopting a proper mode of proof. Failure to object at that stage becomes fatal, as it allows the tendering party to proceed on the assumption that the mode of proof is acceptable. Conversely, a prompt objection causes no prejudice because it enables the court to decide the question of admissibility immediately, and affords the party an opportunity to adopt a regular course.

53.In Gulzar Hussain v. Abdur Rehman and another (1985 SCMR 301), the Supreme Court of Pakistan stated:

“Section 67 of the Evidence Act (Read: Article 59 of the QSO) lays down the mode of proof of the execution of a document. As a general proposition, it is correct to say that every document given in evidence The Supreme Court of Pakistan approvingly cited this view in Abdullah and others v. Abdul Karim and others (PLD 1968 SC 140), and Gulzar Hussain v. Abdur Rehman and another

(1985 SCMR 301).

Equivalent citation: (2003) 8 SCC 752.

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must be proved in the mode prescribed by this section, and if it is not so proved, it will be inadmissible in evidence. But this is subject to the exception in cases where proof of a document is dispensed with under some special provision. However, the mode of proof of a document is a question of procedure and is accordingly capable of being waived. Thus, where objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is exhibited and referred to, no such objection can be allowed to be raised in appeal or revision.”

54.In Hayatullah v. The State (2018 SCMR 2092), the Supreme Court of Pakistan was confronted with a situation where inadmissible material was incorporated into the record in the form of police confessions and memos of pointing out recovery locations already known to the authorities. The Court held that such material was inadmissible under Articles 38 to 40 of the QSO and should not have been admitted, even though no objection was raised by either party at trial. The Court criticized the trial judge for allowing such evidence to come on record and reaffirmed that both the prosecution and defence share a responsibility to prevent the admission of inadmissible material. However, it made clear that the ultimate burden rests on the court to ensure that only lawful evidence forms the basis of conviction. In that case, the appellant’s conviction was set aside because it was based on evidence that should never have been admitted. The Court emphasized that admissibility is a matter of legal compliance, not tactical silence, and that trial judges must proactively safeguard the evidentiary process.25 Similarly, in The Roman Catholic Mission v. State of Madras and another (AIR 1966 SC 1457), and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple [2003 (4) R.C.R. (Civil) 705], the SCI stated that a document not admissible in evidence, though brought on record, has to be excluded from consideration. Again, in H. Siddiqui (D) by LRs v. A. Ramalingam (AIR 2011 SC 1492), the SCI held that “mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.”

In Muhammad Farooq v. Abdul Waheed Siddiqui and others (2014 SCMR 630), a two-member Bench of the Supreme Court of Pakistan took a contrary view that once any document is exhibited without objection from the opposite side, such document cannot be termed as inadmissible evidence. The principle laid down in Hayatullah’s case would prevail because that case was decided by a five-member Bench.

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55.The CCTV footage in USB P-3 falls in the first category of inadmissibility per se. The objection did not concern the mode of proof but arose from the absence of foundational evidence regarding its source, authenticity, and legal admissibility. The footage never acquired the status of valid evidence, and its admission into the record was a serious legal error. “Failure to object to the reception of inadmissible evidence would not be treated as a valid and legal piece of evidence.”26 The trial court was duty-bound to exclude USB P-3 from consideration, irrespective of whether the defence raised a formal objection at the time.

56.As mentioned, in their statements under section 342 Cr.P.C., both Saeed and Sadiq denied their presence in the footage. This raised the question as to whether a photogrammetry test was necessary, which, admittedly, was not carried out. Mr. Khan relied on Article 84 of the QSO and cited foreign cases such as R. v. Nikolovski and R. v. Gubinas to argue that the court could compare the video with the accused and form its own opinion on identity. This argument is misplaced. The language of Article 84 is unambiguous.27 It allows the court to compare signatures, handwriting, seals, and finger impressions but does not extend to facial comparisons in video recordings. It is a settled principle of statutory interpretation that where the language of a provision is plain, effect must be given to it as written.28 Furthermore, where the law expressly enumerates certain categories, others cannot be implied. The inclusion of specific items such as signatures, handwriting, seals, and finger impressions indicates a legislative intent to exclude other forms of comparison, per the Danial Shafqat v. Nasreen (2005 YLR 1185), Nazeer Ahmed Barach v. The State and another (2005 PCr.LJ 882), Mst. Anwari Begum v. Mst. Asghari Khanum and others (2009 MLD 1279) (DB), and Gulraiz v. The State and another (2021 PCr.LJ 145).

Article 84 of the QSO is reproduced below for ready reference:

84.Comparison of signature, writing or seal with others admitted or proved. – (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2)The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3)This Article applies also, with any necessary modifications, to finger impressions.

Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCMR 1254), Government of Khyber Pakhtunkhwa and others v. Abdul Manan and others (2021 SCMR 1871), Government of Khyber Pakhtunkhwa and others v. Intizar Ali and others (2022 SCMR 472), Abdul Nafey v. Muhammad Rafique and others (2023 SCMR 2096).

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maxim expressio unius est exclusio alterius. Although a video may fall within the definition of a “document” under Article 2(d) of the QSO, its admissibility and use are governed by Article 164 and the standards set out in Ishtiaq Ahmed Mirza, Ahmed Omar Sheikh, and Zahir Zakir Jaffar.

57.Mr. Khan’s contention must also be rejected for another reason. Facial features in video are affected by lighting, angles, resolution, and movement, unlike handwriting or signatures, which are static and reproducible. They cannot be reliably assessed through direct observation by the court. Extending Article 84 by analogy to facial comparisons would compromise the evidentiary safeguards that apply to such material.

58.As for the foreign precedents, it suffices to say that they come from jurisdictions with evidentiary frameworks, statutory presumptions, and procedural rules that differ significantly from those in Pakistan. While they may be persuasive in some contexts, they cannot override the specific provisions of the law in our country.

59.The decision in Zahir Zakir Jaffar is instructive but clearly distinguishable. In that case, the prosecution produced not only the CCTV footage but also the original DVR and hard disk, and proved that the recordings were obtained through a trustworthy and automated system. The relevant segments were sent to the laboratory, and a forensic report confirmed that the footage was not edited, and the facial comparison matched the accused. Second, PW Mudasir Alam, who worked as a Computer Operator in Police Station Kohsar, Islamabad, appeared as a witness and confirmed that he played the relevant parts from DVR and made a copy of it on the hard disk and handed over the same to the Investigating Officer. On this basis, the Supreme Court concluded that the footage passed the two-fold admissibility test set out in Ahmed Omar Sheikh. In contrast, the prosecution failed to lay any such foundational basis in the present case.

Medical evidence

60.Dr. Muhammad Umar Baqa (PW-5), who conducted Bashir’s postmortem, found that he was shot at on the right side of the head from a close range. According to the postmortem report Exh. PE, the details of his injuries are as follows:

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(1)A firearm entry wound measuring 7 cm × 5 cm with inverted margins. Blackening was present on the right side of the upper neck, lateral aspect, extending to the base of the skull and posterior to the right ear (entry wound).

(2)A large exit wound measuring 10 cm × 2 cm extended from the posterior aspect of the left ear to the occipital region. The occipital bone was fractured, with pieces missing. Brain matter was exposed, and small fragments were seen in the head and ears.

61.It is trite that medical evidence establishes the fact of death and its cause. At its highest, it describes the kind of weapon likely used, the nature of that injury, and the time frame in which death likely occurred. It does not identify the assailant.29 Therefore, medical evidence cannot by itself connect Saeed to the commission of the offence.

Crime weapon

62.According to the prosecution, Saeed threw the repeater (P‐1) while fleeing. During the site inspection, Ghulam Fareed/SI seized that weapon and a shot shell from the place of occurrence, and secured both vide Recovery Memo Exh. PC. As per the forensic report Exh. PK, the crime empty matched the recovered weapon. At first glance, this might appear to support the prosecution’s case. However, in criminal law, the mere recovery of a weapon used in the offence is insufficient to implicate an accused unless the prosecution also establishes, through reliable and independent evidence, that he possessed or used that weapon at the relevant time, and that its recovery was lawfully effected in accordance with procedural safeguards. Further, the probative value of the recovery and the forensic match depends on an unbroken chain of custody for the weapon and the crime empty, duly proved by the officials who sealed, stored, and transmitted them, and supported by contemporaneous documentation. In this case, the Recovery Memo Exh. PC shows that the police seized the 12 bore repeater P‐1 at the scene after the alleged flight. We have already rejected the testimonies of PWs Imam Bukhsh and Ahmad Yar. There is no reliable evidence that any independent witness was associated at the time of seizure, nor is there proof that the weapon bore the accused’s fingerprints, biological traces, or any other individualizing mark. No gunshot residue report concerning Saeed is on record. There is also no Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410), Muhammad Saleem v. Shabbir Ahmed and others (2016 SCMR 1605), and Hashim Qasim and another v. The State (2017 SCMR 986).

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proof of ownership, licence, or prior possession connecting the repeater P‐1 to Saeed. In these circumstances, the said recovery does not advance the prosecution’s case beyond establishing that a firearm was used.

Motive

63.The prosecution claims that Abid instigated Saeed and Sadiq to murder Bashir. However, while recording their evidence during the trial, Imam Bukhsh (PW-2) and Ahmad Yar (PW-3) did not make any statement regarding the alleged abetment or instigation. There is also no circumstantial evidence on record to support this allegation. During the investigation, the Investigating Officers, Ghulam Fareed/SI (PW-7) and Muhammad Aslam Khan/SDPO (PW-9), failed to collect evidence of any hostility or enmity between Abid and Bashir deceased. Thus, the prosecution has failed to demonstrate any nexus between Abid and Sadiq and the alleged crime through reliable evidence.

Conclusion

64.The ocular account having been rejected, and USB P‐3 excluded as inadmissible, the remaining evidence is insufficient to convict Saeed. He is, therefore, entitled to the benefit of doubt. Accordingly, Crl. Appeal No. 221/2024 is allowed. Saeed’s sentence was suspended by this Court by order dated 24.03.2025, so he is on bail. His surety is discharged.

65.The trial court has held that there is no incriminating evidence about the involvement of Sadiq and Abid in this case. Hence, the charge against them is not proved. Upon our own independent assessment of the evidence, we agree with it. Appeal No. 290/2024 is dismissed.

66.Before parting, we may point out that under section 17 of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, the Prosecutor General, with the prior approval of the Government, has issued the Code of Conduct for prosecutors. Paragraph 2.1 of the Code requires prosecutors to cooperate and coordinate with the police to ensure fair and just prosecutions. Paragraph 2.2 explains that such coordination includes advice and guidance on possible lines of enquiry, evidential requirements, and pre‐charge procedures, so that investigations

Crl. Appeal No. 290/2024

are completed within a reasonable period and a legally admissible case is built. However, prosecutors are not authorized to direct the police or other investigators except as provided in Paragraph 4. It is generally observed that prosecutors do not discharge these duties. As a result, the conviction rate in Punjab remains abysmally low. In the present case, the prosecution failed primarily due to a lack of coordination between the prosecutor and the police, their incompetence, or both. We, therefore, direct the Prosecutor General to ensure strict implementation of the Code in letter and spirit and to take appropriate measures, in consultation with the Inspector General of Police, Punjab, to ensure effective coordination between their respective departments. He shall also arrange periodic training for prosecutors and investigating officers on these requirements and their capacity building.

67.The Senior Additional Registrar of this Bench shall transmit a copy of this judgment to the Prosecutor General and the Inspector General of Police, Punjab, for compliance.

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge Naeem

Announced in open court on ____________________

Judge Judge

[ Approved for reporting

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge